MW (Sri Lanka), R (on the application of) v The Secretary of State for the Home Department

An undisturbed First-tier Tribunal decision made under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 remains the starting point under the Devaseelan v Secretary of State for the Home Department Guidelines. The mere fact that the appeal used the fast-track procedure does not require its weight to be reduced.

The Guidelines are flexible, not a legal straitjacket. A later fact-finder may depart from earlier findings on a principled and properly reasoned basis, but there must be a very good case-specific reason to do so. In a paragraph 353 assessment, the Secretary of State may therefore assess new material through the prism of the earlier findings unless such a reason is shown.

The applicant, a Sri Lankan national, sought judicial review of the Secretary of State’s decision of 30 June 2015 not to treat his further submissions as a fresh claim under paragraph 353 of the Immigration Rules.

His earlier protection and human-rights appeals had been dismissed by the First-tier Tribunal in 2014 under the fast-track procedure. His further submissions relied, among other matters, on his relationship with a murdered journalist and the alleged detention and mistreatment of his brother after removal to Sri Lanka.

The central issue was whether the use of the fast-track procedure necessarily reduced the weight which a hypothetical First-tier Tribunal judge would attach to the earlier findings when assessing whether the further submissions had a realistic prospect of success.

1. The judicial-review application was dismissed. The Secretary of State did not err in concluding that the further submissions did not create a realistic prospect of success before an immigration judge and did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

2. Following TN (Vietnam) and Another v Secretary of State for the Home Department and Another [2018] EWCA Civ 2838, an appeal decision made under the 2005 Fast Track Rules is not automatically void. There is no intermediate category in which it remains valid but must necessarily receive materially reduced weight because of the procedure under which it was made.

3. The Devaseelan v Secretary of State for the Home Department Guidelines applied in the ordinary way. The first judicial decision is the starting point for the later fact-finder. It promotes consistency, finality, legal certainty and judicial loyalty, but does not prevent a later tribunal from departing from earlier findings on a principled and properly reasoned basis.

4. The applicant advanced no detailed forensic criticism of the earlier decision capable of providing a very good, case-specific reason why a hypothetical judge would not treat its adverse credibility findings as the starting point. Generic complaints about detention, limited time, documents or representation in the fast-track process were insufficient. The Secretary of State was entitled to assess the new evidence through the prism of those findings.

5. The remaining grounds disclosed no material error. The Secretary of State could give limited weight to the evidence concerning the brother’s alleged airport detention, rely on applicable country guidance, and conclude that acceptance of the family relationship with the journalist did not undermine the earlier, independent credibility findings.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application dismissed in [2019] UKUT 411 (IAC).
• Secretary of State: On 30 June 2015, declined to treat the applicant’s further submissions as a fresh claim under paragraph 353 of the Immigration Rules.
• First-tier Tribunal: Dismissed the applicant’s protection and human-rights appeals in a decision promulgated on 9 May 2014.